Do the Programs Include Written Materials?
Yes. Written materials are distributed electronically to attendees.

Are questions welcome?
Absolutely. Questions may be submitted any time during the live event or afterward via email. Attendees are also encouraged to participate in live, anonymous polling.

Where is the program being held?This program is a live, online webinar.

MCLE Credits1.25 practical skills/general MCLE credits have been approved by the Oregon State Bar.

Can’t Attend?Video and audio recordings will be available to download along with the program materials shortly after the live program event. Price: $25. Contact me or visit my online CLE store to place an order.

2016 features a host of normal cycle and out-of-cycle amendments to the Uniform Trial Court Rules. All are effective August 1, 2016. For a complete list, see the summary provided here, pages 1-5. Key changes, including several to eCourt, are summarized below.

eCourt

Confidential Attachments in Filings that are not Otherwise Confidential

If a filing is not confidential, but includes an attachment that is, file the attachment separately. UTCR 21.040(2)(b), amended out-of-cycle on June 15, 2016 pursuant to CJO 16-027.

Filers must designate the attachment as confidential in the eFiling system and include an appropriate description in the filing comments field. UTCR 21.040(2)(b), amended out-of-cycle on June 15, 2016 pursuant to CJO 16-027.

Filings in Confidential Cases

If a case is confidential by statute or rule, documents filed in the case must not be designated as confidential.

However, if a particular document within a confidential case is itself confidential by statute or rule, it must be designated as such when filed.

Certificates of Service Incorporated with a Document Must Be Filed as a Single, Unified PDF

Certificates of Service are now part of the “single, unified PDF” requirement. UTCR 21.040(2), amended out-of-cycle on June 15, 2016 pursuant to CJO 16-027.

Proof of Electronic Service

The amended rule requires a dated and signed certificate of service to be incorporated at the end of any document submitted electronically.

If the opposing party was electronically served by the eFiling system, the certificate must state that service was accomplished at the party’s email address as recorded on the date of service in the eFiling system and need not include the party’s email address or postal address.

If the opposing party was not electronically served by the eFiling system, the certificate must include the postal address at which the opposing party was served or, if served by email or facsimile.

Electronic Service to Remain an Additional, Affirmative Step

The UTCR committee declined to amend UTCR 21.100 to make electronic service mandatory or to require simultaneous service by email. See discussion,UTCRs effective August 1, 2016, pages 55-56.

Expedited Filings

A filer who submits an expedited filing must include the words “EXPEDITED CONSIDERATION REQUESTED” in the filing comments field. The filer may “notify the court by email or telephone, as designated on the court’s judicial district website, that an expedited filing has been eFiled in the case.” UTCR 21.070(5), amended out-of-cycle on June 15, 2016 pursuant to CJO 16-027.

Submission of Proposed Orders and Judgments

The out-of-cycle changes to UTCR 5.100 are described in the official explanation as follows:

The revision to UTCR 5.100 breaks the current rule into three parts: service, objection, and submission.

Subsection 1 requires service on the opposing party, and an opportunity for objection, as to any proposed order or judgment unless an exception applies. The rule is no longer limited to only those proposed orders and judgments submitted “in response to a ruling of the court.”

The service component also sets out specific notice requirements and lengthens the time between service and submission to 10 days from 3 days (current, if opposing party represented) or from 7 days (current, if opposing party not represented). The notice requirement specifies that an opposing party has 7 days to object, with an additional 3 days for mailing, consistently with ORCP 10 C.

Subsection 2 relates to objections and is new. It requires service of a written, dated, and signed objection within 7 days of the date that the proposed order or judgment was sent to the opposing party. The drafting party may submit the opposing party’s objection to the court or the opposing party may file an objection by an identified date.

The submission part (subsection (3)) retains the current certificate of service requirement and also clarifies that a proposed order or judgment subject to subsection (1) may be submitted sooner than the 7-day period for objection, if the opposing party has stipulated to or approved the order or judgment, or the opposing party has objected and the objections are resolved or ready for resolution. Additionally, proposed orders or judgments must include a “certificate of readiness,” certifying that the proposed order or judgment is ready for judicial signature or that objections are ready for resolution, and also stating the “readiness” reason.

The following apply whether or not a document is electronically filed with the court:

The filing date is the date that appears in the “date column” of the Register of Actions: “For the purpose of ORS 7.020(1) and (2), the date that a document was filed displays in the date column of the register of actions for the case in the court’s electronic case management system.”

The “entry date” is the date when the event is created in the Register of Actions. “For the purpose of ORS 7.020(2), entry occurs on the date an event is created in the register of actions.”

Pleadings and other documents submitted conventionally must be bound by paperclip or binder clip and must not contain staples. Amended UTCR 2.010(3)(b).

If your document includes an attachment, the attachment must be bound in one packet to the document being filed using a paperclip or binder clip only. Amended UTCR 2.010(3)(b).

The use of backing sheets is prohibited. Amended UTCR 2.010(5).

All documents must have a one-inch margin on each side (except Wills and exhibits). Amended UTCR 2.010(4)(d).

Consolidated Filings

A party filing any document applicable to more than one case must file the document in each case using existing case numbers and captions, unless otherwise ordered by the court or provided by SLR. If filing conventionally into cases consolidated for hearing or trial, it is the filer’s responsibility to provide the trial court administrator with sufficient copies. Amended UTCR 2.090(1).

CIFS

Access to Confidential Information Forms (CIFs) by Non-Parties

Non parties may inspect a CIF upon filing an affidavit of consent, signed and dated by the party whose information is to be inspected. The consent must state the dates during which the consent is effective. Amended UTCR 2.130(6)(c). Declarations under penalty of perjury may not be used in lieu of an Affidavit. Amended UTCR 2.130(6)(d).

Use of CIFs in Additional Proceedings

Use of a CIF is now required in proceedings that are subject to the federal Violence Against Women Act (VAWA). Specifically, the amended rule adds citations to proceedings initiated under ORS 24.190, ORS 30.866, ORS 124.010, or ORS 163.763. Amended UTCR 2.130(2).

Notice of Termination, Substitution of Counsel, Application to Resign

Must now include “court contact information,” as defined in UTCR 1.110. Amended UTCR 3.140(1).

Stipulated and Ex Parte Matters

Local judicial districts are expressly allowed to adopt an SLR designating when stipulated or ex parte matters must be filed conventionally. Amended UTCR 5.060(1).

Trial Memoranda and Exhibits

Trial memoranda must be filed and served on the opposing party; the court may require parties to submit copies in a time and manner specified. Trial exhibits must be submitted as ordered by the court and not filed with the court. Amended UTCR 6.050.

Jury Instructions and Verdict Forms Must Be Filed and Served

Jury instructions and verdict forms must be filed and served on the opposing party; the court may require parties to submit copies in a time and manner specified. Amended UTCR 6.060.

Dissolution of Marriage – Notices and Judgments

The notice of dissolution form required under ORS 107.092 is now available on the OJD website; filing multiple copies of the General Judgment of Dissolution is no longer required. Amended UTCR 8.010.

Uniform Support Declarations/Affidavits Filed by DCS or DA

Uniform Support Declarations or DCS/DA affidavits must be filed and served within 30 days of service of a petition or other pleading that seeks child support or spousal support on other than a temporary basis, subject to the requirements of UTCR 8.040 or UTCR 8.050, when applicable, and in the absence of an SLR to the contrary. Amended UTCR 8.010(6). Also see amended UTCR 8.050(3) relating to judgment modification proceedings and amended UTCR 8.040(4) relating to Uniform Support Declarations accompanying a Motion for Temporary Support.

Limited Scope Representation in Domestic Relations Cases [New]

Requires attorneys who intend to appear on a limited scope basis to file and serve a Notice of Limited Scope Representation in substantially the same form as set out on the OJD website. UTCR 8.110(2).

Requires attorneys who have completed all services under the Limited Scope Representation to file a Notice of Termination of Limited Scope Representation in substantially the form as set out on the Oregon Judicial Department website. UTCR 8.110(3).

Service in limited scope cases shall be made upon the attorney and the party represented on a limited scope basis. [Service on the attorney ends when a Notice of Termination is filed.] UTCR 8.110(4).

Arbitration Awards – Submission and Filing Time Extended

The time for submitting an Arbitration Award to the parties is extended from 7 to 28 days. Amended UTCR 13.210(5) and (6). Amended UTCR 13.220 now allows for an extended filing time with the court of 42 days.

eService in Oregon can be frustrating or impossible if the other side isn’t playing by the rules or doesn’t understand them. Below is a primer on how eService is supposed to work and the problems practitioners are encountering.

eService Rules

When you eFile into a case you are deemed to consent to eService.
UTCR 21.100(1)(a).

eService is available for any document unless you are filing a document that requires personal service or service under ORCP 7. UTCR 21.100(1)(a).

At the first instance of eFiling into a case, a filer must enter in the electronic filing system the name and service email address of the filer, designated as a service contact on behalf of an identified party in the action. UTCR 21.100(2)(a).

When eServing another party, the filer is responsible for selecting the appropriate service contacts in the action for the purpose of accomplishing eService. UTCR 21.100(3)(a).

If the preceding requirements are met, eService is automatic: “When the court accepts an electronic document for filing under UTCR 21.060(1)(a), the electronic filing system sends an email to the email address of each person whom the filer selected as a service contact or other service contact under section (3) of this rule. The email contains a hyperlink to access the document or documents that have been filed electronically.” UTCR 21.100(4).

Transmission of the email by the electronic filing system to the selected service contacts in the action constitutes service. UTCR 21.100(4).

Electronic service is complete when the electronic filing system sends the email to the selected service contacts in the action. UTCR 21.100(5).

When is eService not available?

You won’t be able to eServe the opponent if any of the following are true:

The opponent has not eFiled into the case.

You are filing a document that requires service under ORCP 7 or that requires personal service. For example, a complaint or initiating petition.

The opponent has obtained permission from the court to file conventionally. (If the opponent is not an eFiler, she cannot be eServed.)

Your opponent is a pro se who is not registered in the eFiling system. (If the oppponent is not an eFiler, he cannot be eServed.)

Your opponent eFiled into the case, but failed to enter a designated service contact into the system as required by UTCR 21.100(2)(a).

What if Opposing Counsel Doesn’t Know or Won’t Follow the Rules?

When opposing counsel eFiles into a case, but fails to enter a designated service contact, there isn’t much you can do about it … directly. For example, you might jump to the conclusion that you can do this step for the other side. Unfortunately you can’t. You can select someone to serve, but you cannot add someone as a service contact. Filers have to add themselves, and we are stuck with this consequence. This begs the question: when someone doesn’t comply with UTCR 21.100(2)(a), what should you do? Here are my thoughts:

Verify the availability of service contacts early on. When the other side first appears or when you are served, login to the system and see if opposing counsel is available for you to select as a service contact. This information may not be visible unless you are actually eFiling a document into the case, so don’t wait until you are up against a filing deadline to find out. This leads to my next suggestion.

Give yourself extra time. If you aren’t sure whether the other side has entered a service contact, assume you will have to serve conventionally and plan accordingly.

If you see that opposing counsel has failed to enter a service contact, pick up the phone. Refer opposing counsel to UTCR 21.100(2)(a) and ask him to take care of the oversight.

Create a calendar reminder to follow-up in three to five days (or sooner, if necessary). Login in to the system and check again. If the other side still has not added a service contact, take a screenshot to document that no contact is present, and send a follow-up email to opposing counsel with the screenshot attached. Reference your earlier call. [If you’re a Mac user, see these instructions for taking screenshots.]

If you’ve done all the above and the other side has not complied, it may be time for court intervention – such as moving the court for an order to compel the other side to follow the rule. Attach a supporting affidavit documenting your efforts (calling, emailing opposing counsel). Your screenshot can be added as an exhibit. Refer the court to UTCR 21.100(2)(a) and quote the rule.

If the other side is ordered by the court to add itself as a service contact and fails to do so, asking for sanctions may be the next step.

While all this is going on, don’t forget you still have to serve the other side. Proceed with conventional service until eService becomes available.

Looking for answers to frequently asked eCourt questions? We have them! The Oregon eCourt Update CLE held on November 19, 2014 included a Q & A session.

To access the answers, visit the PLF website. After logging in, select CLE > Past CLE and search for “Oregon eCourt Update.” Click the “Program Materials” link in the upper right hand corner. The Q & A session is incorporated into the CLE handout. Alternatively, the FAQ is also available as a practice aid. Choose Practice Management, then Forms, and under “View forms by category,” select eCourt. Scroll down to locate “Oregon eCourt – Questions and Answers from Oregon eCourt Update CLE.”

If you think protecting your computer from malware, viruses, and other misfortune is somewhat important, but not a top priority, think again.

On March 26, 2010, the 4th US Circuit Court of Appeals upheld the dismissal of a wrongful termination case when the plaintiff’s lawyer failed to respond to a Motion for Summary Judgment served by e-mail. The lawyer told the court he never received electronic notice of the motion because his “computer system experienced several problems … that caused him not to receive various e-mails.” He explained that his “computer was afflicted by a malware virus” and “his firm’s domain name had temporarily expired when the Motion for Summary Judgment was filed.”

Was the court overly harsh in it’s response? Probably not. The court’s opinion lays out the aggravating circumstances:

The lawyer knew that any notice of docket activity would arrive through e-mail pursuant to local rules of practice and procedure.

He also knew the deadline for dispositive motions in the case was pending during the time the firm was experiencing computer problems.

Nothing in the CM/ECF system indicated that the lawyer failed to receive notice of the filing.

The lawyer was well aware of the computer and e-mail problems.

He did not inform the court or opposing counsel of his inability to receive e-notices.

He failed to check the CM/ECF system for docket activity, and had no system in place for doing so.

When he became aware the deadline passed, the lawyer made a strategic decision not to contact opposing counsel.

The morale of the story: Protect your computer and don’t bury your head in the sand. While more was going on here than a mere computer virus, this is still an important wake-up call as we continue to roll out e-court in Oregon.